Murrell, Rufus Scott ( 2009 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. WR-23,193-13

---

EX PARTE RUFUS SCOTT MURRELL, Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W-219-81136-91 IN THE 219^TH JUDICIAL DISTRICT COURT FROM COLLIN COUNTY

---

   Per curiam.

O R D E R  

   Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of attempted burglary of a building and sentenced to fifty years' imprisonment.

Applicant contends that he was denied due process during a parole revocation proceeding. Applicant alleges that he was denied the opportunity to confront and cross-examine witnesses at the revocation hearing. He also alleges that he was denied counsel, despite suffering from physical and mental illnesses that rendered him unable to adequately represent himself in the revocation proceedings.

Applicant has alleged facts that, if true, might entitle him to relief. Morrissey v. Brewer, 408 U.S. 471, 485 (1972). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall first supplement the record with copies of any documents pertaining to Applicant's parole revocation. The trial court shall then make findings of fact as to when the parole revocation proceedings took place, and as to what the alleged violations of conditions of parole were. The trial court shall make findings as to whether Applicant was given notice of his rights in the parole revocation process, including his right to a preliminary and final revocation hearing, and as to whether Applicant waived his right to any such hearing. The trial court shall make findings as to whether Applicant was afforded counsel to represent him the revocation, and as to whether he was provided the opportunity to confront and cross-examine witnesses at a revocation hearing. The trial court shall make findings as to what the basis of Applicant's parole revocation was. The trial court shall make findings as to whether Applicant was provided due process in the parole revocation proceedings. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: April 29, 2009

Do not publish